Historically, there has not been a system of compulsory discovery in Saudi courts. The discovery rules that were in place until recently stipulated that a party may request documents from the opposing party, but the latter is not obligated to produce them. Thus, in general, the practice has been that each party proceeds with the documents that it has in its possession. The exception is if a party submitted documents to the court, then it must provide a copy to the other party. The court has discretion to demand, sua sponte or upon the request of a litigant, the production of a document from a third party, but the court has not often exercised this discretion.

The Law of Commercial Courts was approved by Royal Decree No. M93, dated 15/8/1441H (corresponding to 7 April 2020G), which went into effect in June 2020. The law's implementing regulations, which interpret and clarify the law, were also issued in June 2020. This law appears to modify the documentary discovery system that has been in practice for decades in Saudi Arabia. Article 46 of the law states that either party may request delivery of or access to case-related documents from the other party in accordance with the following conditions: (i) the documents are defined individually or by type; (ii) the documents pertain to the commercial relationship or lead to proving the true nature thereof; and (iii) the documents are not confidential.

However, there is no experience yet in how aggressively the commercial courts will implement Article 46 in compelling the disclosure of documents in a proceeding. The uncertainty revolves around the scope of documents that the court will subsume under this article. In our view, the Saudi commercial courts are unlikely to interpret Article 46 broadly. We anticipate that any document that directly affects the rights and obligations of the parties in the relationship would be discoverable, particularly if such documents were signed by both parties. Thus, agreements and any amendments thereof, minutes relating to meetings between the litigants, letters between the litigants containing understandings or agreements, and other related documents, might be subject to disclosure. However, internal notes, reports, memos, emails, interviews, legal advice and material created in the course of an internal investigation are unlikely to be discoverable. This is not because they are privileged (i.e., arise out of a special, confidential relationship), but because the court would not compel a party to disclose them.

Given the historical practice in Saudi courts against documentary discovery, it is very unlikely that the courts would allow the parties to engage in "fishing expeditions" for documents. We anticipate that the courts would be reluctant to grant discovery requests that are not specific, well-defined and that do not directly affect a fundamental issue in dispute.